Civil-Society Organizations in Prussia, 1794-1908 Richard Brooks
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The Right to Associate and the Rights of Associations: Civil-Society Organizations in Prussia, 1794-1908 Richard Brooks Columbia University Law School Timothy W. Guinnane Department of Economics, Yale University January 1, 2017 This paper has been prepared for the NBER Conference “Organizations, Civil Society, and the Roots of Development.” For comments we thank Carolyn Dean, Naomi Lamoreaux, John Wallis, and other conference participants. We appreciate the able research assistance of Mathilde Laporte, Rachel Jones, and Kelli Reagan. 1 Abstract Civil society plays a central role in democratic regimes. Its absence is telling too. One mark of a repressive government is its effort to suppress or limit civil society. Suppression of civil society has a long history, and has existed even in relatively democratic societies. Historically, this suppression has taken two principal forms: limits on the rights of individuals to assemble or associate and limits on the rights of their organizations or associations. We begin with a simple framework for thinking about the right to associate and the rights of associations, illustrated with examples from U.S. history. We then turn to our principal historical example, tracing the history of limitations on association and civil-society organizations in Prussia from the late eighteenth century to the outbreak of World War I. Prussian governments restricted the right to associate, but, just as importantly, they denied to most civil-society organizations corporative legal rights such as the ability to contract in their own right. We argue that the latter rights are crucial to effective civil-society organizations, and trace the process by which Prussia (later Germany) liberalized its treatment of such groups. In a brief overview we show that similar limitations operated in France in the nineteenth century, even though France after the Revolution had a very different constitutional order. Restrictions on association can be found in quite diverse political environments, even those, such as the United States or Revolutionary France, based self-consciously on the idea of liberty. 2 Was der Mensch ist, verdankt er der Vereinigung von Mensch und Mensch.1 In many countries today the freedom to associate is seen as a fundamental right. A comprehensive survey of the world’s written constitutions reveals that as of 2012, 93 percent include a right to assembly and 94 percent a right of association.2 That these rights are provided as de jure entitlements in constitutional documents does not, to be sure, guarantee they are respected by officials in practice. In most modern democracies, however, entitlements of assembly and association are well-established bedrock features of democratic order and practice. Civil-society groups in these countries often enjoy additional civil and political rights that make it easier for these groups to cohere and to advance an agenda. Such has not always been the case. Freedom of association has not been the historic norm throughout the world. Even in liberal European regimes, such as Revolutionary France, which viewed themselves as leading the charge for human liberty and the democratization of political rights, entitlements to associate and entitlements of associations were largely restricted and not at all assured. In this paper we focus on Prussia, to examine the logic of limitations on the right of civil association and how these limitations evolved and weakened in the latter part of the nineteenth century. The Prussian example highlights a connection to the rights of business associations: in 1 “Man is what he is thanks to his association with his fellow man.” This is the first line of Gierke’s (1868) famous history of associations in German law 2 See Chilton and Versteeg’s (2016) survey of contemporary written constitutions, which included 186 countries. Surveys of older constitutions, undertaken by the Comparative Constitutions Project, found that for constitutions promulgated before 1900, 36% included freedom of assembly, and 46% had freedom of association. For 1900-1945, the comparable numbers are 77% and 83%. Comparative Constitutions Project, Characteristics of National Constitutions. V.2.0, available at http://comparativeconstitutionsproject.org/download-data/ 3 general, business organizations enjoyed associational rights prior to the liberalization of the analogous rules for civil-society organizations. Close study of particular cases is an ideal way to make progress on a question such as this, but we acknowledge the danger of implicitly generalizing from a single country’s experience. To add context we offer a general framework of associational rights, illustrated by reference to American associational expansion over a similar period as our Prussian study. We also briefly reference France, both its internal experience and the influence it exerted over the other German states that in some cases prodded Prussian developments.3 We conclude by drawing out the connections between business law and the development of associational rights. To start we distinguish two basic kinds of association rights. First is the right to associate, that is, the right of persons to come together or create relations with each other. Second is the rights of associations: rights granted directly to associations rather than indirectly through their members, agents, promoters or other proxies. While it is commonly agreed that the right of association is fundamental to a well-functioning civil society, the term ‘association’ invites competing interpretations. As an initial matter, association is distinct from assembly, itself a highly variable entitlement, as we illustrate below by reference to state and federal constitutions at the founding of the United States. To be associated with another person is not the same as assembling with that person. The right to associate is separate and superior to the right of assembly. Assembly is but a single means, albeit an important one, through which persons may 3 Prussia was the core and dominant state in the German Empire formed in 1871. Prior to 1871, the individual German states regulated associations, although the Confederation formed in 1815 also weighed in on the question. The federal constitution adopted in 1871 allocated responsibility for different spheres between the states and the national government. Some areas of law remained at the state level for some years after the Empire’s formation. We focus on Prussian law until 1908, when the Empire adopted a common statute on association. We use “Prussia” as opposed to “Germany” advisedly. For a different German state, see Meyer (1970), who studies associational life in the city of Nürnberg, which became part of Bavaria in 1806. 4 associate Moreover, the right to associate, properly understood, is often incidental to other higher-order constitutional guarantees. In contemporary U.S. constitutional jurisprudence, for instance, courts have granted persons a derivative right to associate in order to secure primary rights of political and religious expression as well as rights of privacy. That these “primary” rights, at times, have been bolstered by privileges of association reveals the historically contingent character of the right to associate. A right to associate as a legal basis of interracial and same-sex marriage among other unions would have been unthinkable in 1776. Modern rights of associations, granted to groups currently engaged in civil and political (as opposed to commercial) activities, would be even harder for eighteenth-century observers to envision.4 We attempt to unbundle the loose package of ‘associational rights’ by characterizing a typology of these rights, illustrated with examples taken from U.S. history. We consider two further examples, Prussia and France. In all three countries today (Germany substituting for Prussia) the right to associate and rights of associations are so clear as to be taken for granted. But in all three countries, the right to associate and the rights of associations were initially less universal than one might think. This was even true in the United States and France, two countries founded after revolutions fought in the name of liberty. Prussia, however, is our primary historical focus: it provides the principal context where we demonstrate the contingency of associational rights as they evolved from the eighteenth-century to the second half of the 4 Even today, it is difficult for lay and expert observers, as well as legal officials, to imagine, characterize and reconcile how associational fictions come to possess constitutional rights directly. As evidence of this difficulty, Blair and Pollman (2015), for instance, point to the confounded U.S. Supreme Court’s jurisprudence on corporate constitutional rights. Notwithstanding contrary judicial rhetoric, Blair and Pollman advance an interpretation that the U.S. Supreme Court has not, in actuality, granted constitutional rights to corporations directly, i.e., “to corporations in their own right,” but rather only derivatively and instrumentally in order to protect the interests and entitlements of natural persons represented by corporations. Taking the Court at its word, however, it is impossible to deny the Court’s recognition of rights resting directly in corporate bodies themselves. Whether the Court was motivated to recognize constitutional rights of corporations in order to protect the interests of natural persons is a question separate from the fact that the Court has granted such rights to corporation.